Joe Taylor, left, of Curve Lake, Ont., who is half Mohawk and half Ojibwa, holds a Mohawk flag during a rally held to show opposition to the Enbridge Northern Gateway pipeline in Vancouver on Tuesday. It remains open to question whether the federal government has fulfilled its constitutional obligation to consult with aboriginal communities that would be affected by the Northern Gateway pipeline, Andrew Coyne writes.

Photograph by: Darryl Dyck/The Canadian Press
, Postmedia News

The point has been made, and well, that the Harper government was not exactly bubbling over with enthusiasm Tuesday in releasing its decision on the Northern Gateway pipeline project. No minister was on hand to make the announcement. The statement it put out did not formally approve Enbridge’s proposal, or even endorse last December’s report of the National Energy Board’s Joint Review Panel, which approved it subject to a list of 209 conditions.

All the government would say is that it accepted the panel’s recommendation to impose the conditions, while lecturing “the proponent” that it had “more work to do” if it hoped to ever actually build the thing. Why, it didn’t even refer to itself as “the Harper government,” as is its custom, but rather attributed the decision to some faceless entity by the name of “the Government of Canada.”

That could be read as the government edging away from a project it now sees as a political liability. Or it could just be doing what it should have done in the first place: stay out of it. At this point, having blared its unstinting support for the project even before the review panel had begun hearings, then smeared environmentalists raising the alarm at the project’s potential ecological impact as “foreign radicals,” then given itself the power to overrule the NEB should it find against it, the Harper government has less credibility on the issue, outside of the previously committed, than any organization in the country, Enbridge included.

And not only for its handling of Gateway. The government’s approach to most issues has been in the same high-handed, over-the-top vein, to the point that, on an issue it truly cares about, when it really needs the public to give it the benefit of the doubt, it finds no reserves of goodwill to draw upon. Probably many environmentalists and aboriginal groups would have opposed the project no matter who was in power, or how it was presented. But it is interesting to speculate where broader public opinion would be today under a government that, rather than advertise its intent to push ahead with the project whatever the risks to the environment, had instead gone out of its way to emphasize its attentiveness to environmental concerns. This strikes me as Politics 101: Cover your weak flank.

That Gateway has the support it has today — a roughly even split, according to the latest poll, both in British Columbia and the country at large — is entirely due to the NEB. Had the review panel found against it, it would have been doomed. Indeed, it might not have fared much better had the panel accepted it unconditionally. The government, far from bringing the NEB to heel, now finds itself clinging to its skirts, hoping it is seen as independent enough, and credible enough, to convince the waverers. As the government’s statement said, this is indeed but “another step in the process”: The project must not only comply with all of the regulatory hurdles, but will have to win the battle for public opinion, culminating in next year’s federal election.

If the government overplayed its hand early, however, opponents of the pipeline risk making the same mistake in the late going. The Joint Review Panel conducted one of the most thoroughgoing inquiries on record. It held 180 days of hearings in 21 communities, heard oral evidence from 393 individuals, took oral statements from 1,179 more, and received more than 9,000 written submissions, in addition to the 206 organizations and 12 governments with formal intervenor status. The three-member panel is made up of recognized experts in the field: The chairwoman is a former environmental consultant; a second panellist, himself aboriginal, is a geologist with 25 years of experience in resource management, much of it with aboriginal communities.

That does not make their judgment above scrutiny, or their findings above criticism. Moreover, it remains open to question whether the government has fulfilled its constitutional obligation to consult with aboriginal communities affected — not resolved by Tuesday’s prim instruction to Enbridge to “engage with aboriginal groups” — which the courts will have to decide. This is all to the good. As frustrated as the pipeline’s supporters must be at the length of time it has taken, and will take yet, to break ground — Enbridge first announced it would seek regulatory approval in 2009, after seven years of planning and consultations — the issues its critics raise are profound and valid. It is a good thing, not a bad thing, that such vast enterprises can no longer simply plow ahead with a prime minister’s nod.

But whatever one thinks of the Joint Review Panel or its report, or the government that commissioned it, that’s the process. It represents both the lawful and legitimate way of proceeding. Gateway’s opponents are fond of declaring, with ex cathedra certainty, that the pipeline “will never be built.” But they can’t possibly know this. Which raises the question: What do they mean? There is an absolutist hue to the rhetoric of some environmental and aboriginal activists that suggests an unwillingness to accept the pipeline under any circumstances.

Governments are obliged to act within the law — to follow due process, to consult as required, etc. But so are their opponents. At some point, after all the conditions have been met and all the legal challenges have been exhausted, the critics will have to decide: Is there any process they will recognize as legitimate, if it does not give them the result they seek? Is there any point at which they concede? Or do they invoke the pernicious doctrine of “social licence” to justify violence and lawlessness?

It is extremely unhelpful in this regard to hear the Opposition leader, Tom Mulcair, denounce the project as a “severe threat to social order” across Canada. No. I’m sorry, no. Lawful authority, acting lawfully, is not a threat to social order. It is social order.

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Joe Taylor, left, of Curve Lake, Ont., who is half Mohawk and half Ojibwa, holds a Mohawk flag during a rally held to show opposition to the Enbridge Northern Gateway pipeline in Vancouver on Tuesday. It remains open to question whether the federal government has fulfilled its constitutional obligation to consult with aboriginal communities that would be affected by the Northern Gateway pipeline, Andrew Coyne writes.

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